HOUSING LAW NEWS & POLICY ISSUES

Grenfell Tower – rehousing of residents
On 21 June 2017 Communities Secretary Sajid Javid announced that the government had secured the first tranche of permanent new homes to rehouse local residents affected by the fire at Grenfell Tower. The 68 flats are newly built social housing and form part of the Kensington Row development in Kensington and Chelsea. For more details, click here

Grenfell Tower – update to MPs: 22 June 2017
On 22 June 2017 Sajid Javid wrote to members of parliament with an update on the action being taken by the Government in response to the disaster at Grenfell Tower. For the letter, click here

Grenfell Tower – update to Parliament: 26 June 2017
On 26 June 2017 Sajid Javid provided the House of Commons with an update on the Government response to the Grenfell Tower tragedy. For the statement, click here

Grenfell Tower – combustibility tests
On 22 June 2017 Melanie Dawes CB, Permanent Secretary at the Department for Communities and Local Government, wrote to local authorities and housing associations further to her letter of last week (as to which see Housing Law Week of 21 June 2017) concerning the testing process for samples of cladding in new builds and refurbishments. She attached a note setting out the action that an independent panel of experts have advised must immediately be taken if it is determined that the insulation within Aluminium Composite Material (ACM) is unlikely to be compliant with the requirements of the current Building Regulations. The advice has been endorsed by the National Fire Chiefs Council. On 26 June 2017, Sajid Javid, reporting to Parliament, said that 75 high-rise buildings, in 26 local authority areas, had failed the combustibility test. For the letter from the Permanent Secretary, click here For Sajid Javid’s statement to Parliament on 26 June, click here For a map, published by The Guardian, identifying and locating those blocks which it says have failed a combustibility test, click here

Grenfell Tower – safety checks by private rented sector
On 21 January 2017 the Residential Landlords Association reported that it had received a letter from Melanie Dawes urging it to contact landlords, owners and managers of PRS blocks throughout England in the wake of the Grenfell Tower fire. She has said that landlords must carry out safety checks on buildings as a matter of urgency. For the report, click here

Grenfell Tower – response of Local Government Association
On 24 June 2017 the Local Government Association released a statement concerning the combustibility tests. It said: "Councils are contacting residents living in tower blocks whose cladding has failed tests and are working with fire services to establish what action needs to be taken. Councils are also supporting social and other landlords in their area to help them in their work to ensure the safety of their residents when cladding on their buildings fail tests. Where cladding fails the test, this will not necessarily mean moving residents from tower blocks. In Camden, the decision to evacuate was based on fire inspectors’ concerns about a combination of other fire safety concerns together with the cladding.” For the full LGA statement, click here

Grenfell Tower – criminal investigation
On 23 June 2017 Detective Superintendent Fiona McCormack of the Metropolitan Police, who is overseeing the investigation into the fire at Grenfell Tower, confirmed that expert evidence suggested that the fire was not started deliberately but started in a fridge-freezer. She said: "We will identify and investigate any criminal offence and, of course, given the deaths of so many people we are considering manslaughter, as well as criminal offences and breaches of legislation and regulations … I am appealing to those people for whom Grenfell Tower was their home or to anyone who has previously lived there. If you have previously reported concerns or safety issues about the building then please get in touch with us – we want to hear from you and what you reported. Importantly, if you did have concerns but did not, for whatever reason, raise them before please tell us now. The Crown Prosecution Service is advising the police investigation and their expertise will be used at every stage of our investigation.” For the full statement, click here

Grenfell Tower residents – Discretionary Housing Payments
On 23 June 2017 the Department for Work and Pensions published an urgent bulletin stating that applications for DHP from former residents of Grenfell Tower should be regarded as a priority and that local authorities should be flexible when determining them. It said that following the fire applications might be received from former residents for assistance towards rent in advance, deposits and other lump sums associated with a housing need such as removal costs or, indeed, the cost of temporary accommodation. The bulletin noted that former residents are unlikely to have any identification documentation as a result of the tragedy to make a formal application. Since a lump sum payment for either a deposit or rent in advance is not made in respect of a period, the official considering the application needs only to be satisfied that the claimant is entitled to HB or Universal Credit when the award is made. To read the bulletin, click here

Grenfell Recovery Taskforce meeting
On 26 June 2017 the Prime Minister chaired a meeting of the taskforce, getting updates about the support for those affected as well as the wider picture. She received an overview from the Metropolitan Police on the work around victim identification and there were also updates on rehousing, where the Secretary of State for the DCLG spoke about the discussions taking place with residents and the progress being made in identifying permanent homes for those displaced from Grenfell Tower. Other discussions focused on financial payments to residents and the plans to announce details of the Public Inquiry shortly. For further details of the meeting, click here

Grenfell Tower – support of local charities
On 26 June 2017Sajid Javid announced that the Government is providing £1 million to support the charitable response to the Grenfell Tower disaster. This “recognises the extraordinary efforts made by many smaller charities and not-for-profit organisations following this tragic event. The money is a significant contribution to the locally-led recovery effort. It will be administered by a consortium of independent trusts and charities, and be co-ordinated by London Funders.” For the announcement, click here

Grenfell Tower – response of Welsh Government
On 20 June 2017 Cabinet Secretary for Communities and Children, Carl Sargeant, announced that he is setting up an expert group to examine all of the lessons coming out of the Grenfell Tower fire, and their application to Wales. The group will include representatives from the social housing and fire sectors and will be chaired by the Cabinet Secretary’s Chief Fire and Rescue Adviser. For the full announcement, click here

Grenfell Tower – response of Scottish Government
On 23 June 2017 Communities Secretary Angela Constance said: “This week, we asked local authorities to give us further information about their high rise domestic buildings. They have reported that they have over 500 high rise domestic buildings in their areas. All 32 local authorities have advised the Scottish Government that no council or housing association high rise domestic buildings have the type of cladding reported to have been used in the Grenfell tower … 24 local authorities have also reported to us that no privately owned high rise domestic buildings have [such] cladding.  The remainder are completing their investigations as a matter of urgency.” For the statement, click here

Chalcots Estate evacuation
On 24 June 2017 Camden Council decided to evacuate residents from four tower blocks at the Chalcots estate following a joint inspection of the blocks by London Fire Brigade and Camden Council technical experts. The council has issued a series of updates on the situation. On 26 June 2017 the council stated: “We have been working through the night to allocate residents with safe and secure accommodation, and there are now just 14 people staying at Swiss Cottage rest centre. We hope to find a comfortable place for them to stay by the end of the day.” The updates appear on the council’s newsroom page, for which click here For answers to frequently asked questions about the situation, click here

Queen’s Speech – letting agents’ fees
In the Queen’s Speech, delivered on 21 June 2017, the Government announced that it would introduce a new Tenants' Fees Bill, which will ban charging tenants ‘letting fees’ in order to improve transparency, affordability and competition in the private rental market. The proposal was originally announced in the Annual Statement, delivered on 23 November 2016 (see Housing Law Week of 30 November 2016). Briefing notes published by the Government on the announcements in the Queen’s Speech, state that the main elements of the Bill are measures: to ban landlords and agents from requiring tenants to pay letting fees as a condition of their tenancy; and to enforce the ban with provision for tenants to be able to recover unlawfully charged fees. ARLA Propertymark, which represents letting agents, said: “A ban on letting agent fees will cost the sector jobs, make buy-to-let investment even less attractive, and ultimately result in the costs being passed on to tenants.” For the Government briefing notes, click here For ARLA’s response, click here

Queen’s Speech – domestic violence
In the Queen's Speech the Government has also committed to bringing forward legislation "to protect the victims of domestic violence and abuse". The Government’s briefing notes state that the purpose of the Bill is to "transform our approach to domestic violence and abuse to ensure that victims have the confidence to come forward and report their experiences, safe in the knowledge that the state and justice system will do everything it can to both support them and their children, and pursue their abuser." For the briefing notes, click here For a House of Commons Library briefing paper examining the background to the proposed legislation, click here

Welfare benefit cap
On 22 June 2017 Mr Justice Collins, giving judgment in DA and Others v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin), found that the revised benefits cap operated to unlawfully discriminate against lone parents with children under the age of two and those children under the age of two. For a report on the Garden Court Chambers website, click here For analysis of the judgment on the Nearly Legal blog, click here For the judgment itself, click here

Housing Benefit, private rents and homelessness
On 24 June 2017 Shelter published research identifying a number of reasons why people on low incomes are increasingly unable to find a home and secure a tenancy in the private rented sector. The research finds that the most important reason is the shortfall between Housing Benefit and the cost of private renting. Shelter says that whilst the shortfall may sometimes be small, it can still have devastating effects on whether people can find a new home when their tenancy has ended. The research document says that such shortfalls are set to get worse and analyses how many people could be at risk of being affected by this by 2020, without government action. To read the research, click here For a summary, click here

Help to Buy
On 22 June 2017 the DCLG released statistics relating to Help to Buy. They show that: over 285,000 completions have taken place using one or more of the Help to Buy schemes; over 240,000 first time buyers have benefited from the scheme; the average house price across the schemes is £193,826 (which is below the average UK house price); and over 90% of completions across the Help to Buy schemes have taken place outside of London. For the statistics, click here For the DCLG announcement, click here

Homelessness and homelessness prevention statistics
On 22 June 2017 the DCLG released statistics for the period January to March 2017 showing that local authorities accepted 14,600 households as being statutorily homeless (up 1 per cent on the previous quarter and down 1 per cent on the same quarter of last year). These are households that are owed a main homelessness duty to secure accommodation as a result of being unintentionally homeless and in priority need. The total number of households in temporary accommodation on 31 March 2017 was 77,240 (up 8 per cent on a year earlier, and up 61 per cent on the low of 48,010 on 31 December 2010). Local authorities took action to prevent and relieve homelessness for 56,140 households between January and March 2017 (down 2 per cent on 57,060 in the same quarter of 2016). For the statistics, click here For figures for individual local authorities, organised by various criteria, click here

Homelessness and homelessness prevention – responses to statistics
In response to the latest homelessness statistics (above), CIH policy and practice officer Faye Greaves said: “We are particularly concerned about the continuing rise in the numbers of households in temporary accommodation, which has soared by a staggering 61 per cent since December 2010. The number of households trapped in bed and breakfast accommodation has also risen, and includes thousands of families with children. This type of accommodation is often very poor quality and highly unsuitable, especially for families." For the full CIH statement, click here Jon Sparkes, Chief Executive of Crisis, said: “Our research shows that nearly two thirds of English councils are struggling to find social tenancies for homeless people, while half are finding it 'very difficult' to help homeless people into private renting. We desperately need more truly affordable homes for rent, as well as housing benefit that genuinely covers the cost of renting. At the same time, we’re calling on the Government to invest in schemes that support people into private renting, including creating and underwriting a national rent deposit guarantee. The Government already pours billions into ‘Help to Buy’. What we really need is ‘Help to Rent’." For the statement on behalf of Crisis, click here Homeless Link's Chief Executive, Rick Henderson, commented: “The housing market is broken, with a chronic shortage of low cost housing and people struggling to afford a new private rented tenancy when their current one ends. We know that something has to change; it is not right that thousands of families should have to live in poor quality temporary accommodation, often with shared facilities, and that many of these have been housed away from their local area and established support network. … It is vital that resources are put behind the Homelessness Reduction Act so that it works as it should, to prevent people from becoming homeless and effectively assist those that do. More than that, establishing a cross-government strategy to end homelessness should be a priority …” For the Homeless Link statement, click here

EU citizens in UK after Brexit
On 26 June 2017 the Government published a policy paper outlining its proposals for safeguarding the position of EU citizens living in the UK and UK nationals living in the EU. Para 45 states that “[c]urrently EU citizens living in the UK and UK nationals residing in the EU enjoy access to public services such as healthcare, education and social housing. Our clear intention during negotiations is to ensure that these individuals continue to enjoy these entitlements and healthcare arrangements.” For the full document, click here

Supported housing – Local Government and Social Care Ombudsman’s decision
On 20 June 2017 the LGSCO reported that a Warwickshire man, who had suffered a stroke, was prevented from living independently for too long because two councils failed to follow correct procedures. One made assumptions about the man’s capacity to make decisions about where he wanted to live and about what property would be suitable for him, without carrying out the proper assessments; the other delayed considering his housing application. The Ombudsman found that both councils failed to take an overview of the man’s needs and to work together to ensure the best possible outcome for him. For a report of the decision, click here The decision itself can be access from that page.

Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2017
On 22 June 2017 the Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2017 came into force. They amend the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 to reflect changes to Appendix FM of the Immigration Rules, which rendered out of date regs 3 and 5(1) of the 2014 Regulations (prescribing the classes of person subject to immigration control who are eligible for an allocation of housing accommodation and for the housing assistance respectively). For the 2017 Amendment Regulations, click here For the 2014 Regulations, click here

Private rental market summary
On 22 June 2017 the Office for National Statistics published private rental market summary statistics for April 2016 to March 2017. The median monthly rent recorded between 1 April 2016 and 31 March 2017 in England was £675. London had the highest median monthly rents and largest variation in rental values, followed by the South East. The median rent in London (£1,495) was more than double the English median rent. The North East had the lowest median rent at £495. For the statistics, click here

HOUSING LAWS IN THE PIPELINE

Abolition of the Right to Buy and Associated Rights (Wales) Bill
This Bill is currently at Stage 1 in the Welsh Assembly. The Equality, Local Government and Communities Committee is undertaking an inquiry into the general principles of the Bill. The Constitutional and Legislative Affairs Committee considered the Bill on 3 April 2017. For progress of the Bill (including the Committees’ scrutiny), the text of the Bill itself and explanatory memorandum, together with proceedings of the ELCG Committee and correspondence arising from them, click here and scroll down.

NEW HOUSING CASES

Shelfside (Holdings) Ltd v Vale of White Horse District Council [2017] UKUT 259 (LC)

The Upper Tribunal (Martin Rodger QC, Deputy Chamber President) has held that a tribunal may confirm a compliance notice issued by a local authority if it is satisfied to the civil standard of proof, namely on the balance of probability.

Ladycroft Mobile Home Park (‘the Park’) in Oxfordshire was subject to a site licence in accordance with the Caravan Sites and Control of Development Act 1960 (as amended by s.4 of the Mobile Homes Act 2013). Amongst other matters that the licence regulated is the permitted distance between mobile homes and other structures on the Park including boundaries.

Following an inspection at the Park and proceeding correspondence going unanswered, the authority served seven notices (under s.9A(1) of the 1960 Act (as amended)) upon the appellant for failing to comply with conditions attached to the site licence. Subsequently, appeals were lodged against the notices to the First-tier Tribunal.

However, only one of the notices remained in issue. This required that any structure, including steps, which extended more than 1 metre into the separation distance between two homes must be of “non-combustible construction”. To ensure compliance with the condition, the appellant had to either remove or replace the steps.

At the Ft-T, the appellant denied any failure of compliance because the steps providing access to the home were made of aluminium clad with uPVC which it maintained was a non-combustible material. The authority considered that UPVC was a combustible material. Neither party relied on any admissible expert evidence to substantiate its position.

The Ft-T concluded that due to the apparent refusal by the appellant to engage with the authority, it had been entitled to serve the compliance notice. The 1960 Act provides that such notice may be served if “it appears” that there has been non-compliance.

Permission to appeal was sought on the grounds that there had been no evidence before the Ft-T to sufficiently satisfy it beyond reasonable doubt that the relevant condition of the site licence had not been complied with. Whilst the Ft-T did not consider that the criminal standard of proof applied in its proceedings, it nevertheless granted permission on the grounds that the standard of proof required in cases where the relevant legislation creates a criminal offence associated with its jurisdiction was a point of potentially wide implication which it was appropriate for the UT to consider.

There were two issues before the UT - on the burden of proof and the standard of proof. In an appeal against a compliance notice, is the authority required to prove that there has been non-compliance with a condition of the site licence, or is it for the occupier of the site to provide that there has been compliance? Further, if the burden is on the authority to prove non-compliance with a condition of the site licence, must it do so beyond reasonable doubt, or only on the balance of probability?

Incidentally, soon after permission to appeal was granted by the Ft-T, the UT determined the same issues in other proceedings between these parties concerned with the Park (Shelfside (Holdings) Ltd v Vale of White Horse District Council (No.1) [2016] UKUT 400 (LC)). However, that decision (of His Honour Judge Bridge) had not been published when the F-tT gave permission to appeal. HHJ Bridge said [at 37] that s.9A(1) of the 1960 Act contains no express reference to any standard of proof (criminal or civil) nor should any be implied. However, [at 38] he said that in the event of a criminal prosecution, whether under s.9 (for breach of a licence condition) or under s.9B (for failure to take steps required by a compliance notice), the criminal standard of proof would certainly apply. Martin Rodger QC agreed. He said [at 15]:

‘…on an appeal to the FTT against a compliance notice, the question for the tribunal is whether the facts stated in the notice are made out. In reaching its own conclusion on that question the FTT will apply the civil standard of proof.’

Nothing suggested by the appellant called into question the very well established general principles concerning proof in civil proceedings laid down and explained in two decisions of the House of Lords, In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563and Secretary of State for the Home Department v Rehman [2001] UKHL 47.

Whilst the Deputy President accepted the assertion of the appellant that the 1960 Act contained no provision that had the effect of requiring it to prove compliance with the site licence, he disagreed that the Ft-T had reversed the burden of proof. He said [at 25] that it was not necessary for the authority to provide affirmative evidence that the material used in the construction of the steps had been tested and found to be combustible; it was sufficient for it rely on the fact that in general, material of the type used is combustible. Once that was established, the evidential burden of demonstrating that the particular material was different from uPVC in general then passed over to the appellant - who failed to discharge it. Consequently, the Ft-T was entitled to conclude that the steps were combustible.

Accordingly, the appeal was dismissed. The appellant was also reminded that if it could demonstrate that the material used in the construction of the steps was some other non-combustible type, it may satisfy the authority with the necessary proof to request that it exercise its power to revoke the compliance notice.

Summary by Naveen Agnihotri, barrister, Arden Chambers.  For the full judgment click here.

___

R (on the application of C) v LB of Islington [2017] EWHC 1441 (Admin)

On 31 May 2017 the High Court handed down judgment in a judicial review matter in which the claimant, C, was challenging LB of Islington's housing allocations policy.

In the judgment, C succeeded and the High Court held that LB of Islington had acted unlawfully in the way that it operated part of its housing allocations policy relating to direct offers of accommodation. Consequently, LB Islington was required to reconsider the claimant's housing application.

The High Court received written submission from the parties on costs. The costs order was the subject of this further judgment which was handed down on 21 June 2017.

The High Court reminded itself that the costs rules of the CPR apply to a public law claim as much as to a private law one (per M v Croydon LBC) and that the general rule is that the unsuccessful party will pay the successful party's costs. However, the court does have the power to make a different costs order.

LB of Islington argued that, since the claimant had succeeded only on one out of three grounds which she had argued, LB of Islington should be entitled to its costs or that alternatively, there should be no order as to costs.

The claimant had succeeded on a ground which had been raised only a short time before the trial. However, the High Court held that the claimant had only raised that ground a short time before trial because the unlawful practice which gave rise to that ground of judicial review had not been ascertainable at an earlier stage as it was not evident from the disclosure which LB of Islington had given. The High Court held that LB of Islington should have disclosed the unlawful practice earlier.

In all the circumstances, the High Court held that the appropriate order to make was an order that a proportion of the successful party's costs be paid (pursuant to CPR 44.2(6)(a)). The High Court held that an appropriate order to make to reflect the claimant's failure to succeed on two out of three grounds was that LB of Islington should pay 60% of the claimant's costs, with a payment on account being ordered in the sum of £30,000.

Summary by Alexander Campbell, barrister, Arden Chambers.  For the full judgment click here.

HOUSING LAW CONSULTATIONS

Energy efficiency and condition standards in private rented housing in Scotland
The Scottish Government has designated energy efficiency as a National Infrastructure Priority, the cornerstone of which will be Scotland’s Energy Efficiency Programme. This 15 to 20 year programme is intended to improve the energy efficiency of homes and buildings, supporting efforts to reduce climate change emissions and tackle fuel poverty. This consultation asks for views on proposals to improve the energy efficiency and condition standards in privately rented housing in Scotland. The consultation closes on 30 June 2017. For more details, click here

Regulatory reform of social landlords – Wales
On 8 May 2017 the Welsh Government launched a consultation on reforms that will enable the Office for National Statistics to reclassify RSLs back to the private sector for accounting purposes, including: disposal consents; power to direct the permitted use of disposals proceeds; restructuring and dissolution; regulatory powers; and local government controls. The consultation closes on 3 July 2017. To access the consultation document, click here

HOUSING LAW ARTICLES & PUBLICATIONS

How Shelter is working at Grenfell to offer housing advice and assistance Kate Webb [2017] Shelter Blog 22 June. To read this article, click here

Local authority employees, tied accommodation and Article 14 challenges Andrew Lane and Tara O'Leary [2017 Local Government Lawyer 23 June. To read this article, click here

Housing inequality kills Lynsley Hanley [2017 Guardian 23 June. To read this article, click here

Bedrooms, river beds and more Giles Peaker [2017] Nearly Legal 24 June. To read this article, click here

Social Housing in the aftermath of Grenfell Tower Giles Peaker [2017] Nearly Legal 24 June. To read this article, click here

Tenants need powers to hold landlords to account. After Grenfell, who could doubt it? Karen Buck [2017] Guardian 25 June. To read this article, click here

The Observer view on the housing crisis Editorial [2017] Observer 25 June. To read this article, click here

Housing benefit: The black hole that continues to grow Heather Spurr [2017] Shelter Blog 26 June. To read this article, click here

Developers cannot be allowed to keep breaking their promises on affordable housing Rose Grayston [2017] Shelter Blog 26 June. To read this article, click here

Housing benefit: update 2017 Bethan Harris, Desmond Rutledge and Kevin Gannon [2017] June issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here

Recent Developments in Housing Law Jan Luba QC & Nic Madge [2017] June issue of Legal Action. Available in print and on-line for Legal Action subscribers. For the latest issue, click here

Tower cladding tests after Grenfell fire lack transparency, say experts Robert Booth [2017] Guardian 26 June. To read this article, click here

Warnings that went unheard Debra Wilson [2017] Law Society Gazette 26 June. To read this article, click here

THE HOUSING LAW DIARY

30 June 2017                
Consultation closes on Energy efficiency and condition standards in private rented housing in Scotland (see Housing Law Consultations)

3 July 2017                  
Consultation closes on Regulatory reform of social landlords – Wales (see Housing Law Consultations)

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